Audio of Anthony Kennedy: The mandate fundamentally changes the relationship between citizens and the federal government

posted at 4:15 pm on March 27, 2012 by Allahpundit

Ed touched on this earlier but you should listen to the clip, as it’s surely the single most momentous exchange from today’s momentous hearing. If the mandate ends up being cashiered, this will be its epitaph.

A dirty little secret about Kennedy: He’s not nearly as centrist when it comes to the Commerce Clause and the Tenth Amendment as he is on, say, abortion and gay rights. He’s been the fifth vote for a conservative majority on several landmark cases finding limitations on federal power. I get the idea sometimes from righties who don’t pay much attention to the Court that they view him as another Souter, but that’s not remotely fair. In fact, it’s telling that he begins here by noting enumerated powers. The liberal view of the Constitution on economic regulation is, for all practical purposes, that the only restraint on federal power is the Bill of Rights. My sense of how they imagine those rights is as a sphere that’s been carved out that the feds can’t invade, but as long as they stay outside of it, they can do anything they want. In reality, of course, it’s the feds who are trapped in a sphere. That’s the point of enumerated powers — to lock them inside an area within which they can act but from which they’re not supposed to escape. Everything outside that sphere is reserved for the people and their state governments. (That’s the point of the Tenth Amendment.) Kennedy seems to take that same basic view. It’s entirely possible that he’ll drive a stake through the mandate’s heart.

Later on, it would appear that Kennedy had some doubt about whether the health insurance market was, in fact, a unique phenomenon. But near the end of the entire argument, when challengers’ lawyer Michael A. Carvin was at the lectern, Kennedy made a comment that he may have started to see the issue differently.

To understand its significance, the context of this later remark is important. Justice Breyer had again, as he had done several times during the challengers’ argument, stressed that Congress was confronted with a situation in whch some 40 miliion people did not have insurance, and that gap was, in fact, having an effect on commerce that was substantial. “So,” Breyer said, “I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, bujt simply whether those decisons of that groujp of 40 milliion people substantially affect the interstate commerce that has been set up in part” through a variety of government-sponsored health care delivery systems. That, Breyer told Carvin, ”the part of your argument I’m not hearing.”

Carvin, of course, disputed the premise, saying that Congress in adopting the mandate as a method to leverage health care coverage for all of the uninsured across the nation. Kennedy interrupted to that that he agreed “that’s what’s happening here.” But then he went on, and suggested that he had seen what Breyer had been talking about. “I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.”

If Kennedy can be persuaded that health care is sui generis, maybe he’ll split the baby by voting to uphold ObamaCare while emphasizing that a mandate for any other industry would be flatly unconstitutional. Not sure how that argument will work — listen to Roberts in the second clip below wonder why a cell-phone mandate would be any different than one for health insurance — but that’s the left’s best hope. Speaking of which, their explanation for today’s disaster appears to be not that they have a weak case on the merits but that Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl. In fairness to them, some of his exchanges with the Court are painful to read; the liberals on the bench had to bail him out repeatedly. But look: No case of this magnitude is being decided by oral arguments. If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors. Obama has four very good lawyers on his side in the Supreme Court’s chambers. Verrilli’s performance is unfortunate and terrible optics for O-Care’s superfans, but it’s not changing any votes.

Update:Orin Kerr notes the million-dollar phrase in Kennedy’s comments today: “Heavy burden of justification.” He didn’t suggest that mandates are always and everywhere unconstitutional, only that in order to justify using one the feds need to point to some very special and compelling circumstances. The whole question now is whether the allegedly “unique” health-care market is special and compelling enough to get Kennedy to vote with the left.

Update: To see what I mean about the liberal view of the Constitution, read lefty Michael Tomasky wondering why we can’t settle this issue with simple democracy. America elected a Congress that passed a mandate; if the people don’t like the mandate they came up with, let ‘em elect a new Congress to undo it. In other words, in lieu of enumerated powers in Article I, he’d apparently let Congress run wild with regulation and leave it to voters to rein them in. That’s a fine idea, and the Court’s ridiculously expansive Commerce Clause jurisprudence sometimes flirts with it, but it’s not the system we have. Enumerated powers mean something or they don’t.

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you know, the broccoli analogy is actually much strongr than i realized. just as the liberals say that the product is not health insurance but rather health care, Alito today turned the tables on the SG and stated that the product is not broccoli but rather the consumption of food. in both cases the govt could require you to purchase a product to prevent the market from being disrupted. very neat. apparently, Ruth BG had to literally rescue the fumbling SG.

Verrilli’s performance is unfortunate and terrible optics for O-Care’s superfans, but it’s not changing any votes.

Shouldn’t it, though? This is the guy going up to bat for it, and he strikes out…that should tell them something about the supposed constitutionality of the legislation. No other justices should have to make his argument for him.

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

The court may decide that it’s something that individual states can do, but not something that the federal government has the power to mandate. They may end up agreeing, sort of, with Romney, which might somewhat vindicate Romney.

The Constitution which established our form of governance is a limiting document, not a permissive document, thus there are specific limits to what government can do rather than limits on what the People can do.

As it should be.

If the Obamacare mandate is held to actually be Constitutional, then nothing remaining of the Constitution need apply…as upholding the mandate removes all limits on the invasive power of government into the lives of private citizens.

He’s been the fifth vote for a conservative majority on several landmark cases finding limitations on federal power. I get the idea sometimes from righties who don’t pay much attention to the Court that they view him as another Souter, but that’s not remotely fair.

Susette Kelo may wish to have a word with you about that, from wherever she lives now.

I’m betting SCOTUS will uphold the mandate, if only because this is an election year and they don’t want to be seen as influencing the result. The Supreme Court hasn’t stood up to the Executive Branch in any meaningful way since Schlecter Poultry Corporation v. United States. The Judicial Branch tries so hard to stay so far above the fray that its forgotten its purpose.

Hint: The US Government is not The United Federation of Planets. We don’t have a Prime Directive.

If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors.

It’s unclear how much influence they would have on him. I recall Larry Tribe’s unintentionally funny letter to the White House on the Sotomayor nomination.

Tribe was worried because now that Stevens was gone, and Souter going, no one was around to influence Kennedy, as Breyer and Ginsberg “did not have purchase on Tony Kennedy’s mind.”

Tribe wanted Kagan for the first nomination, as he thought she would be able to influence him. I think Tribe’s worry was that without a Stevens or Souter or Kagan, Kennedy would drift into the conservative orbit.

Kagan is there now, but there was a gap in time, and the Tribe letter of course, may have put Kennedy off listening to Kagan.

If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors. Obama has four very good lawyers on his side in the Supreme Court’s chambers.

I wonder how this knowledge will influence Kennedy. It has to make an impression on him that the liberal justices appear to have their minds so made up, even before hearing any arguments, that they are basically making the case for Obama’s attorney during the hearings.

If the government can tell that we must buy something because we exist we go from being a free people to a ruled people.
Obama has put 2 far left flunkies on the Supreme court. See why it is important to win elections?

On a related note, what happened to the noise Senator Jeff Sessions was making a few months back on whether or not Kagan had perjured herself in her written answers regarding her involvement in ObamaCare as Solicitor General??

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

I agree with this. but the killer to insurance companies is not the kids until 26. Its the pre-existing conditions.
However i suspect if it stays in it will just raise all our premiums.

the 26 year old rule is in mass. upt to 26 year olds are NOT automatically covered. its just that an insurance company cannot
refuse to cover a child up to 26 if the parents request it

Seems to me the likely outcome is Kennedy coming down against the mandate, but severing it from the rest of law and holding the remainder constitutional. Roberts would be in the majority and thus write the majority opinion in a 5-4 vote.

Alito and Thomas (perhaps even Scalia) would write concurring opinion(s) claiming the entire law to be unconstitutional. A few on the left would probably draft some separate dissents as well.

Basically you end up with a 5-4 decision against the mandate, but probably a 5-4 or 6-3 in favor of upholding the law as a whole. At that point you’d have a plurality (perhaps a majority), punting the law back to Congress to find a way to pay for the thing. That’s when things will get nuts… 2013 with a GOP House, a cliffhanger either way in the Senate, and Obama likely back for a second term after a narrow win over Romney.

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

It was nice of Verrilli to allow the anti-constitutional ideologu…er, I mean liberal justices…to make his arguments for him today. That way they were able to engage in the process a little bit, instead of just sitting there, silently reviewing their list of reasons for supporting Obamacare.

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

topdog on March 27, 2012 at 4:33 PM

But you still have to purchase the phone.
I think we have a choice to opt out from buying a cell phone, today.

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

topdog on March 27, 2012 at 4:33 PM

True, but just because we have to pay for the 911 service, doesn’t mean that we ever use it. Some folks have never dialed 911, whereas others dial it all the time. It is clear that paying for 911 service is a tax for a service, but it is not guaranteed that one will ever use 911 service, nor healthcare services. There are people that do not go to see HC providers you know.

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

topdog on March 27, 2012 at 4:33 PM

Most 911 services are local, and funded locally. Thank God.

Can you imagine a Federal 911 system? “Your call is important to us and the average wait time is 37 minutes…”

We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills…

That’s a bad argument in my opinion. In other words, because you have to pay $1 a month in emergency phone call coverage, we’ve got the power to enact a social contract-changing mandate with a price tag of trillions of dollars. If that is the best argument the Obama administration can muster, ACA is DOA.

Great work, AP. Yet I consider it implausible that the liberal judges will have much persuasion on Kennedy’s position unless they have incriminating photos of him. As a nation we have never encountered this overreach of a mandate (or call it a tax) based on inactivity. There is no consumption involved but that what is “expected” to be likely to take place in the future. For their argument to hold any merit, they would have to advance the science to Gattaca levels.

There’s tomorrow’s argument – the huge medicaid obligations on the states that could end up taking 70% of state revenues to meet the federal medicaid mandate.

Obamacare expanded medicaid up to take in more people. Generally the court has held that if you want federal money, you take it with federal strings. I think there is one case in which the Court said the burden of the strings was just too much, but generally it has been, “Don’t want the strings. Don’t take the money.”

Speaking of which, their explanation for today’s disaster appears to be not that they have a weak case on the merits but that Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl.

No surprise there. Standard MO. It can’t be the policy that’s wrong,..it just isn’t being messaged properly. Where have we heard that before?

As a citizen listening to this hearing, I am finding it a great opportunity to take the time to learn more. Today’s lesson for me is “law of torts”. No need to sit back and watch helplessly, but let’s make the effort to thoroughly inform and educate ourselves.

The contract issue is a major deal as well. No contract can be enforced if a party is forced into that contract. But this works both ways. If someone gets cancer today, then goes to get insurance tomorrow, the govt is forcing the company to enter into a contract against it’s will.

As a side note, I have always wondered how the NLRB can force mgmt and a union to perform a transaction when one of the sides does not want to join in the contract. It seems illegal to me. I guess in the end both sides agree, who knows. If Mgmt says I do not like the services you will provide at that cost, then why can’t mgmt hire non-union people?

I am aware that state laws force a lot of this, but the NLRB is national.

I think that’s fairly accurate, except I don’t see Barry winning if his crew focuses on Healthcare.

Barry cannot run on fixing Obamacare with $5 gas, stagflation and people froze out of a summer vacation for the fourth straight year because he’s obsessed with healthcare. Indie voters are going to think he’s OCD, that this guy will not give it up no matter WTF else is going wrong. In other words, he’ll look nuckin futs.

The cell phone argument could backfire. We have universal 9-1-1 coverage because of government mandates, and the government requires us to pay for it as fees attached to our telephone and cell phone bills, although I am not sure whether this is at the federal or local level.

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

Rational Thought on March 27, 2012 at 4:21 PM

I don’t know if the Solictor General is throwing it on purpose or not, but your point is spot on.

If Supreme Court only strikes down the mandate, but leaves the rest of Obamacare intact, we are guaranteed a single payer system in very short order. No one would need to buy health insurance in advance. They could simply wait until they needed it. Such adverse selection would shortly bankrupt any insuror foolish enough to continue writing business.

All states have certain procedures required for an insurance company to withdraw from a market, and those procedures often take years. Should Obamacare survive without the individual mandate, insurance companies will be forced to immediately start on shutting down their health insurance operations.

Obama wants to lose this. His lawyer is intentionally throwing the case. The mandate gets struck down, but the other provisions — “children” on their parents’ insurance until age 26, must cover all pre-existing conditions but cannot charge more for it — stay. The insurance companies will be belly up within two years and people will be screaming for the government to “do something.” Hello, single payer health care.

Rational Thought on March 27, 2012 at 4:21 PM

There is some precedent on this. An unanimous opinion from the Rehnquist years called Duquesne Power & Light.

You cannot regulate a business out of business by making it impossible to earn a fair profit. Don’t recall the details, but Richard Epstein of U Chicago Law (who had a few things to say about former law school colleague Obama elsewhere), had a column on it in the WSJ in late 2010.

Kennedy does scare me. He might pull a this-and-no-further ruling and call it a compromise, which it wouldn’t be; just a CYA punt.

The very nature of a contract is that it’s entered into VOLUNTARILY by the consenting parties. This is not Luca Brasi holding a gun to Johnny Fontaine’s manager’s head and assuring him that either his brains or his signature will be on that paper. You cannot force someone into a contract with someone else. By definition, that is not a contract. It’s coercion.

In a sane world, this decision would be a 7-2, maybe 6-3 at worst, to overturn. The fact that we are biting our nails over something that is so obviously, blatantly unconstitutional speaks volumes of how far we have fallen since FDR tried to pack the courts.

I wish that were true. We can kill it in the courts, repeal next year, and still fight this fight til the end of time.

The liberals will just try to pass another socialized medicine bill the next time they win office. Eventually they will and we will not be able to repeal it or kill through the supreme court. I just hope me and my family are long gone by then.

In terms of the actual vote breakdown, the four liberal justices will vote to uphold. There is no hope whatsoever of swinging any of those four.

They keys here will be Kennedy and Scalia. Alito and Thomas will vote to strike the whole thing regardless. Roberts, too, is likely a reactive vote either way. As Chief Justice on such a massive case, he’s going to want to be in the majority, so he won’t lead the cause either way. He will seek to persuade the other justices to his thinking in chambers, but in the end he’ll follow the majority, wherever that takes him.

Obama and the left need to pick up either Kennedy or Scalia. If they can get either one of those two, they’ll pick up Robers as well and win 6-3. If they miss on Kennedy and Scalia, the mandate gets struck down 5-4 with Roberts writing the majority opinion.

None of this matters. If it is struck down/repealed, the queen of HHS with reinstate the whole thing by royal decree. We live in a monarchy where congress has little relevance. ONE MORE THING: Obama WILL approve the pipeline this summer. The queen of homeland security and the queen of the EPA have passed royal decrees that will ensure that it will never be built so he will just approve it and score on both sides politically

In fairness to Verrilli, just put yourselves in his shoes. You are arguing what might be the 2nd biggest case in Supreme Court history, only after Marbury v. Madison. I doubt he has slept in days, he must have been nervous as hell, and he couldn’t even think straight. I know he was a top litigator at Jenner & Block and has superb credentials, but he is still human. So, I know Verrilli is getting slack today for doing a bad job, but I seriously doubt there are many lawyers who would have stayed composed and done a better job.

The fact is simply that Verrilli has a bad argument. The law does not support his position, and he has to try to spin the commerce clause jurisprudence, which has been coming back from an expansive interpretation, to get Kennedy to agree with him. It’s a tough job for anyone.

They never expected it to make it this far, and now they’re relying on the lefty judges.

You have to go by how sure the MSM lefties were over the ruling. Dead-set confidence to the point they were wondering if Thomas would be the sole holdout. Now, they’re looking at Solomon splitting the baby, which they know won’t work and will force a total restructure of Obamacare.

If that’s the case, then bases will be motivated, which is exactly what Barry does not need to win. Obama needs suppressed turnout, because the summer is going to suck wind thanks to gas and inflation.

A:) If the Supreme Court struck this down, I think that it wouldn’t just be about health care. It would be the Supreme Court saying: ‘Look, we’ve got the power to really take decisions, move them off of the table of the American people, even in a democracy. And so it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments. The challengers are saying that this law is unconstitutional, which means even if 95 percent of Americans want this law, they can’t have it. And that’s a really profound thing for an unelected court to say.

That is from Neal Katyal, who as acting US Solicitor General.

We live in a Democracy; not a Constitutional Republic where a CONSTITUTION might limit the power of the government, but a democracy where the majority can do anything and mob rule holds sway.

SINCE WHEN?

If the acting Solicitor General of the United States can’t properly identify OUR OWN FORM OF GOVERNMENT then we’ve got problems beyond just this case…

Seriously, a democracy? Two wolves and one sheep vote on what is for dinner, that’s a democracy… I want no part of it.

So no, I’m not surprised to hear they’re confused by the law and their own arguments… they’re not really that clever. Which is what makes it so sad that they’ve gotten this far being this stupid.

Oh, so you’re just a Lib, then? After all, you’re attacking a Conservative Judge who will be instrumental in overturning Obamacare. What other reason would you have to be doing that right now on a onservative site?

You cannot regulate a business out of business by making it impossible to earn a fair profit. Don’t recall the details, but Richard Epstein of U Chicago Law (who had a few things to say about former law school colleague Obama elsewhere), had a column on it in the WSJ in late 2010.

Wethal on March 27, 2012 at 4:47 PM

Is it different at the state level? Washington State ran Aetna and other insurance providers out of the state through overregulation.

I wonder how this knowledge will influence Kennedy. It has to make an impression on him that the liberal justices appear to have their minds so made up, even before hearing any arguments, that they are basically making the case for Obama’s attorney during the hearings.

I think a reasonable person would see this as a gigantic red flag.

Kataklysmic on March 27, 2012 at 4:27 PM

Kennedy will no doubt wrestle with his soul in one way considering that regardless of what the four cheerleaders on the bench are doing, the issue must be settled on its own constitutional merits. He may give it more consideration than it deserves to be fair.

No putting this issue to bed until the opinion is written. No doubt about the headlines though if it fails: